Overstayed in Waitrose car park….

lon_85

In the letter they sent me last it says appeal within 28 days from original communication so that's why I was a bit confused.

LDast

Just get on with it. The POPLA code is valid for 33 days from the date of the original appeal rejection. Count 33 days from that date and if if hasn't passed, you still have time.

lon_85

My draft appeal - 

Dear POPLA Adjudicator,

I am the registered keeper of vehicle XXXXXX and am appealing a parking charge from Britannia Parking.

On the XXXX, Britannia Parking issued a parking charge notice via post.

The notice states that the above vehicle had been recorded via their automatic number plate recognition system at entering and exiting XXXX car park on XXXXX.

As the keeper of the vehicle that is related to this PCN, I wish to appeal the fine due to the facts explained in the below text.

1.  The notice to keeper is not compliant with PoFA and so the keeper cannot be liable and declines to name the driver.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

2). The operator has not shown that the person it is pursuing is the driver and persuasive Legal president does not allow inference.

3) Britannia has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.

I require a copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.

I do not believe that the contract allows Britannia to charge paying visitors £95 for 'overstaying the maximum time permitted’.

It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.

Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:

“The written authorisation must also set out:

a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) Who has the responsibility for putting up and maintaining signs

e) The definition of the services provided by each party to the agreement.''

The operator is put to strict proof of all aspects mentioned above. 

4) It was insufficient signage. The car park question has no clear signage to explain what the relevant parking restrictions are. This means no contract can be formed with the landowner and all tickets are issued illegally.

Yours faithfully, 

LDast

As the keeper of the vehicle that is related to this PCN, I wish to appeal the fine due to the facts explained in the below text.

The fact that you refer to the invoice as a "fine" immediately tells the assessor that you are low-hanging fruit on the gullible tree and can probably let their paymasters have this one.

You have gone on about PoFA but not stated which sections of PoFA the operator has not fully complied with.

Please don't just copy and paste something and hope the it applies to your case. You need to at least try and understand what you are staying. Don't expect us to so all the legwork for you. 

Coupon-mad

Coupon-mad said:

lon_85 said:

This is page 1- although date says 28th May I only got this today 

  

It's very obviously non-PoFA (which you'll know from when you read the NEWBIES thread first and looked at the linked thread of NTK pictures) so an absolute slam-dunk cinch to appeal.

As above.

Easy peasy one to win at POPLA.

lon_85 said:

In the letter they sent me last it says appeal within 28 days from original communication so that's why I was a bit confused.

We know what we are doing. We don't say codes last till day 33 without knowing!

lon_85

Hi everyone - drafting the appeal, just wanted to put in the main summary points that I am going to cover, I will paste the final draft once it is finished. Can you kindly let me know if I'm on the right track with regards to the points: 

Appeal re POPLA Code: XXXXXXXXXXXXX v Britannia Parking

 

Vehicle Registration: XXXX XXX

POPLA ref: XXXXXXXXXX

I, the registered keeper of this vehicle, received a letter dated 28th May 2024, acting as a notice to the registered keeper. My appeal to the operator – Britannia Parking – was submitted and acknowledged on 27th June 2024 but subsequently rejected by a letter dated 27th June 2024.

As the registered keeper, I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

 

1)      The ntk is Non- POFA compliant; thus keeper cannot be liable and is not obliged to disclose the name of the driver

2)      The operator has not shown that the person it is pursuing is the driver

3)      No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

4)      Unclear signage - There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces.

5)      Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach.

6)       No Evidence of Period Parked – NtK does not meet PoFA2012 Requirements

7)      Vehicle Images contained in PCN: BPA Code of Practice – non-compliance

8)      The ANPR System is Neither Reliable nor Accurate

9)       The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.

Grizebeck

Why do people doubt the advice given on here

lon_85

I'm not doubting the advice given on here -  I'm reading the forums and examples of appeals there seems to be many points that are included in the Brittania POPLA appeal and I'm doing this for the 1st time hence I'm just asking for some advice. Thanks for your help thus far everyone. 

Coupon-mad

Remove the last points 5-9 inclusive.

1-4 will win. Britannia will give up.

lon_85

1st draft of POPLA Appeal:

Appeal re POPLA Code: xxxxxxxx  v Britannia Parking

Vehicle Registration: xxxxxxxxxx

POPLA ref: xxxxxxxxxxxx

I, the registered keeper of this vehicle, received a letter dated 28th May 2024, acting as a notice to the registered keeper. My appeal to the operator – Britannia Parking – was submitted and acknowledged on 27th June 2024 but subsequently rejected by a letter dated 27th June 2024.

As the registered keeper, I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1)  The notice to keeper is Non - POFA compliant; thus keeper cannot be liable and is not obliged to disclose the name of the driver. In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot – they will fail to show I can be liable because the driver was not me.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

Understanding keeper liability

 “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

 There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. 

PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. 

Most notably, paragraph 9(2)(a) requires the NtK to:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” 

Britannia Parking’s NtK simply claims that the vehicle entered “Waitrose – Northwood, 52 Green Lane, HA6 2XW”at 18:06:54  and departed at 20:50:09”. 

At no stage does Britannia Parking explicitly specify the “period of parking to which the notice relates”, as required by POFA 2012. Britannia Parking uses ANPR (while failing to comply with the data protection 'ICO Code of Practice' applicable to ANPR) to capture images of vehicles entering and leaving the unbounded area to calculate their length of stay.

 Any vehicle passing through will be captured by ANPR. Britannia Parking, however, does not provide any direct evidence of its alleged violation. It is not in the gift of Britannia Parking to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Britannia Parking are not able to definitively state the period of parking.

I require Britannia Parking provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

2)      The operator has not shown that the person it is pursuing is the driver and persuasive Legal president does not allow inference. 

3)      No Evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. As Britannia Parking does not have a contract with the appointed agents for the site or proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site- is key evidence to define what this operator is authorised to do, and when/where. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement and that the attached emails from representatives of two agents provide up-to-date evidence of the absence of authority in this case. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

 

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2   If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3   The written authorisation must also set out: a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement d) who has the responsibility for putting up and maintaining signs e) the definition of the services provided by each party to the agreement

4)      Unclear signage - There are no entrance signs for the regular entry and signs in this car park are not prominent, clear or legible from all parking spaces. The car park in question has no clear signage to explain what the relevant parking restrictions are. This means no contract can be formed with the landowner and all tickets are issued illegally.

BPA’s Code of Practice (18.2) states:

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”

BPA’s Code of Practice (18.3) states:

“Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” 

BPA’s Code of Practice (Appendix states: “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material”

Britannia Parking’s car park signs are inadequate and illegible in a number of ways, not least because of the sheer amount of text that must be read. It clearly violates BPA’s Code of Practice (18.3) and appendix B. The poor lighting conditions and height of the sign poses additional difficulty for anyone to read. It cannot be reasonably assumed (particularly given this case took place after sunset in a car park without its own lighting or without any signage being adequately lit) that a driver drove through the site and could read a legible sign, observed one upon entrance to the car park, nor parked near one.

Bearing all the evidence above in mind, there was categorically no contract established between the driver and Britannia Parking. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer.

 I look forward to your reply.

Yours Faithfully,

xxxxxxxxx xxxxxxxxxx

(Registered Keeper)